Secret Holds Jeopardize Federal Judiciary

Contributor, aka tidbits. Attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.

Fewer judicial nominees have been confirmed in the first 20 months of the Obama administration than at any time in more than 40 years. Nearly 10% of federal judgeships are currently vacant. In addition to the 103 open seats, 20 other federal judges have announced plans to retire. There are currently 23 judicial nominees who have cleared the Senate Judiciary Committee but have not been brought to a Senate vote.

According to the Administrative Office of the U. S. Courts, 48 of the vacant positions have been designated as “judicial emergencies” due to the length of the vacancies or the pressing case load in the judicial district. The current shortage of confirmed judges will severely delay trial and appellate dockets and has the effect of discouraging qualified candidates from seeking positions as federal judges. ABA President Stephen Zack, after calling the secret hold of nominations “unacceptable”, went on to explain,

“The current gridlock discourages anyone from subjecting themselves to the judicial nomination process.”

The inability to bring nominations to a vote doesn’t just impact partisan appointments. Many bipartisan judicial nominations are also being thwarted. The nominee who has waited the longest to have a hold lifted is Albert Diaz of North Carolina. He has the support of both Democrats and Republicans, including Sen. Richard Burr (R-N.C.). Nan Aron of the Alliance for Justice said of the problem,

“Many of the judicial nominees enjoy bipartisan support, so what we are seeing is political maneuvering for the purpose of holding seats open.”

The Secret Hold rule allows any individual senator to prevent a nomination from coming to a vote even though the nomination has cleared the appropriate committee. Recent changes to the rule require senators to disclose within six days who placed the hold. Because there is no effective sanction for failing to disclose, the requirement is almost universally ignored.

Senator Clair McCaskill (D-Mo.) authored a letter to Senate leadership, signed by more than 60 senators, to end the practice of secret holds. Majority Leader Harry Reid (D-Nev.) promised to make it one of the first matters to be brought to a vote in September. To date, no action has been taken.